Later, the officers asked Snyder to bring Shaydon to
his family's home. It was the first time that Shaydon had been
back in his home since his brother's death. As before, the
officer videotaped Snyder's conversation with Shaydon. Snyder
explained that children Shaydon's age "generally are kind of
narcissistic; in that, you know, it's all about them and what
they want to do at that moment." Snyder accordingly would "play
cards or color this picture or, you know, play telephone, or
whatever it was that his -- his kind of needs were at that
moment." She testified, however, that "the art to [interviewing
children] is then getting back to where -- where you were
headed."

Many of Shaydon's statements during the interview were
inconsistent. However, Snyder elicited from him that, on the
night Lucas died, defendant was angry with Lucas for crying and
getting out of bed and that defendant knocked Lucas's crib over,
hit him on the head, and rubbed him on the floor.

The state filed a motion in limine to determine whether
Shaydon's statements were admissible under OEC 803(18a)(b). (2)
Five days later, the United States Supreme Court issued its
decision in Crawford v. Washington, 541 US ___, 124 S Ct 1354,
158 L Ed 2d 177 (2004), which announced a new way of analyzing
the federal Confrontation Clause. After receiving supplemental
briefing on Crawford, the trial court held a pretrial evidentiary
hearing. The trial court ruled that Shaydon was not competent to
testify, that Shaydon's statements to Snyder were admissible
under OEC 803(18a)(b), but that admitting those statements would
violate the federal Confrontation Clause.

The trial court explained that Crawford prohibits
admitting "testimonial" statements in a criminal case unless the
defendant has an opportunity to cross-examine the declarant. The
trial court found that Shaydon's statements were testimonial
because a government officer, acting as an agent of the police,
questioned Shaydon in a manner structured to obtain information
for the state to use in prosecuting defendant. Because defendant
had no opportunity to cross-examine Shaydon, the court held that
the federal Confrontation Clause barred the admission of
Shaydon's statements.

The state filed a pretrial appeal in this court. See
ORS 138.060(2)(a) (authorizing pretrial appeals to this court
when trial courts suppress evidence in murder and aggravated
murder cases); State v. Koennecke, 274 Or 169, 172-73, 545 P2d
127 (1976) (holding that statute authorizing appeals from
"order[s] made prior to trial suppressing evidence" also applies
to pretrial orders excluding evidence). In reviewing the trial
court's ruling, we are bound by the trial court's factual
findings but not by its legal conclusions. State v. Pinnell, 311
Or 98, 115, 806 P2d 110 (1991).

In Crawford, the police questioned the defendant's wife
about a homicide. 124 S Ct at 1357. The wife was not available
to testify at trial, and the Washington Supreme Court ruled that
her statements to the police were admissible as statements
against penal interest. Id. at 1358. Following Ohio v. Roberts,
448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980), the Washington
Supreme Court also ruled that admitting those statements in the
defendant's criminal trial did not violate his Sixth Amendment
right to confront the witnesses against him. Crawford, 124 S Ct
at 1358-59. The United States Supreme Court reversed and, in
doing so, announced a different Confrontation Clause analysis
than it had announced in Roberts.

The Court began its analysis in Crawford by recounting
the history that preceded the adoption of the Confrontation
Clause. The Court drew two inferences from that history.

"First, the principal evil at which the Confrontation
Clause was directed was the civil-law mode of criminal
procedure, and particularly its use of ex parte
examinations as evidence against the accused."

In reaching the latter conclusion, the Court relied on
the "striking resemblance" between the historical examples that
gave rise to the Confrontation Clause and modern-day police
interrogations. Id. The Court observed that, in the seventeenth
and eighteenth centuries, the English justices of the peace "had
an essentially investigative and prosecutorial function" --
similar to the function that police officers perform today. Id.
at 1365. The Court reasoned that "[t]he involvement of
government officers in the production of testimonial evidence
presents the same risk, whether the officers are police or
justices of the peace." Id.

The Court drew a second inference from the historical
record. It inferred that

"the Framers would not have allowed admission of
testimonial statements of a witness who did not appear
at trial unless [the witness] was unavailable to
testify, and the defendant had had a prior opportunity
for cross-examination. The text of the Sixth Amendment
does not suggest any open-ended exceptions from the
confrontation requirement to be developed by the
courts. Rather, the 'right . . . to be confronted with
the witnesses against him,' Amdt. 6, is most naturally
read as a reference to the right of confrontation at
common law, admitting only those exceptions established
at the time of the founding."

The state candidly acknowledges that other courts have
held that statements similar to Shaydon's are testimonial. (10)
The state, however, identifies three factors that, it contends,
demonstrate that Shaydon's statements are not testimonial. The
state notes initially that, although Snyder was a government
official, she was not a police officer. The difficulty with the
state's argument is that, as the trial court found, Snyder was
acting as an agent for the police when she elicited the
statements from Shaydon. Whatever the merits of the state's
distinction, and we express no opinion on it, it is inapposite
here.

The state also notes that Snyder's interview with
Shaydon lacked the formality and solemnity that, it contends,
characterize testimonial evidence. The Crawford Court, however,
explained that statements made during a police interrogation
constitute testimonial evidence, and it described the statements
that an officer elicited from the four-year-old victim in White
as testimonial evidence. Here, Snyder elicited statements from
Shaydon at the request of the officers while they videotaped the
interviews. Snyder structured the interviews in an age-appropriate way to elicit information from Shaydon relevant to
the police investigation. We cannot say that this interrogation
differs, in any meaningful way, from the police interrogations in
Crawford or White.

Finally, the state argues that, in deciding whether
Shaydon's statements were testimonial, we should focus on
Shaydon's intent in making the statements. The state's argument
is difficult to square with the reasoning in Crawford. As noted,
the Court explained that "the principal evil at which the
Confrontation Clause was directed was the civil-law mode of
criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused." Crawford, 124 S
Ct at 1363. The primary focus in Crawford was on the method by
which government officials elicited out-of-court statements for
use in criminal trials, not on the declarant's intent or purpose
in making the statement.

To be sure, there may be situations in which the
declarant's purpose in making a statement may bear on whether the
statement is testimonial. An unsolicited statement presents one
possible example. Emergency calls to government officials
present another. We need not resolve those issues, however, to
decide this case. Snyder's interviews with Shaydon are
effectively indistinguishable from the ex parte examinations that
Crawford places at the heart of the Confrontation Clause
protections. The trial court correctly ruled that the Sixth
Amendment Confrontation Clause prohibits admitting Shaydon's
statements to Snyder in defendant's criminal trial.

The order of the circuit court is affirmed.

1. Snyder testified that she would have asked Shaydon the
same questions even if the officers had not wanted to investigate
Lucas's death.

5. The Court noted that "[m]ost of the hearsay exceptions
covered statements that by their nature were not testimonial --
for example, business records or statements in furtherance of a
conspiracy." Crawford, 124 S Ct at 1367.

6. Under Crawford, the Confrontation Clause does not bar
admission of a statement if the defendant had an opportunity to
cross-examine the declarant when the statement was made, 124 S Ct
at 1369, or, if not, has the opportunity to do so at trial, id.
at 1369 n 9.

8. Crawford endorsed one exception, the rule of forfeiture
by wrongdoing, 124 S Ct at 1370, and noted the possibility that
the exception for dying declarations also may apply to
testimonial statements, id. at 1367 n 6.

9. In White, the state sought to admit statements that a
four-year-old child made, at separate times, to her babysitter,
her mother, an officer, a hospital nurse, and a doctor. The
Court in Crawford referred only to the statements that the child
made to the officer as testimonial.